Is She Asking For It? Cracks in the rape shield laws
A young woman goes to a party on a Navy base and is raped by a sailor. No way,the sex was consensual, he tells her boyfriend. She reports the incident to the Naval Criminal Investigative Service, and texts the sailor asking him to admit he raped her. The Navy's Region Legal Service Office declines to prosecute.
This is one of 3230 sexual assault reports documented in the military last year-an 11 percent increase over 2008, according to data just released by the Department of Defense.
As I scan through case after similar case, it makes me think about how many woman, in and out of uniform (including myself), have been to that party, or maybe it was a bar, and found ourselves with a guy we vaguely know, or who's a friend of a friend... No gun, no stranger in an alley. He just overpowered us, and forced us into having intercourse-a violent, traumatic trespass, nonetheless, sometimes physically damaging, often emotionally disabling, and most important, a crime. Yet the thought of pressing charges often makes us stop in our tracks. Who wants to be quarried for the dirty details of our love lives?
Actually, the legal system is supposed to protect us here. Instituted in the 1970s and 1980s, the rape shield laws were designed to ensure that a complainant's sexual history could no longer be dragged into evidence to be held against her. As a culture, we'd gotten past the old sexist idea that a woman who looks hot, or is experienced in bed, is "asking for it."
Only we really haven't, according to Michelle J. Anderson, Dean and Professor of Law at CUNY School of Law in New York. In her extensive and keen writing on the topic, she cites several studies showing that jurors are more likely to convict, or consider a rape more serious, if the accuser is a virgin than if she's sexually experienced. Worse, such madonna- w---- ambivalence is responsible for a series of legal exceptions written into the new rape laws that create what Anderson calls "cracks in the shield."
In some states, for example, a defendant can still claim that his accuser engaged in a "pattern" of sexual behavior with others (usual translation: she's a slut), with the logic that such a (trashy) woman is more likely to have consented. (Ironically, as Anderson points out, if she's so open to sex, why would she then go and lie about a rape?) A similar exception allows evidence of the women's sexual history when used to show why the accused thought she agreed to get intimate, even though she didn't (usual translation: After all, she's a flirty party girl.)
Another legal exception lets a defendant bring up prior sexual activity between himself and his accuser-clearly a problem for victims who've broken off abusive relationships and are attacked by the ex, and for those still in such relationships. This exception, Anderson writes, "cracks the shield because men with whom the complainant has been previously intimate commit 26% of all rapes."
Altogether, she tells me, it's these cracks that let rapists slip through the system and go unpunished, in large part because women are deterred from reporting the crime. In fact, 60 percent of sexual assaults are not reported to the police according to RAINN, the Rape, Abuse & Incest National Network.
Anderson's advice if it happens to you?
* Despite the difficulties you may face, report the rape to authorities.
* Talk to counselors at your local rape crisis center, even if it has been years since you were raped.
* If the police, prosector, judges, or jury don't treat you with respect, or take your claim seriously, reach out the the media and share your story. "Until people understand the damage that rape does and the way the law underserves victims of sexual abuse, we can't hope for legal change," Anderson says.
Why not start here? Do you have a story to tell?
For a few ideas to combat date rape:
[Photo Credit: Getty Images]
